11 May 2015
Family Law Council Secretariat
c/o Attorney-General’s Department
3-5 National Circuit
BARTON ACT 2600
Dear Family Law Council Secretariat,
Please accept this submission to the Families with Complex Needs & the Intersection of the Family Law and Child Protection Systems.
The Aboriginal Family Law Service provides legal representation and education to Aboriginal communities in Western Australia in the context of family and sexual violence. This document contains information acquired by experience and supported by secondary research to support recommendations for legislation change in how Aboriginal people access the family law and child protection systems. This submission addresses Terms of Reference 1 and 2:
1. The possibilities for transferring proceedings between the family law and state and territory courts exercising care and protection jurisdiction within current jurisdictional frameworks (including any legal or practical obstacles to greater inter-jurisdictional co-operation).
2. The possible benefits of enabling the family courts to exercise the powers of the relevant state and territory courts including children’s courts, and vice versa, and any changes that would be required to implement this approach, including jurisdictional and legislative changes
This document has been prepared with assistance from University of Notre Dame student Amy Bradley.
The Aboriginal Family Law Services (WA) welcome the opportunity to provide further information as required.
Yours sincerely
Mary Cowley
Chief Executive Officer
890 Albany Highway
East Victoria Park WA 6101
ABN: 96 811 845 328
ICN: 7333
Submission to the Family Law Council
Families with Complex Needs & the Intersection of the Family Law and Child Protection Systems
April 2015
1. About Aboriginal Family Law Services (WA)
The Aboriginal Family Law Services (WA) is committed to being a leader in the provision of family violence legal services, support and education for Aboriginal and Torres Strait Islander people in Western Australia (WA) who have experienced, or, who are experiencing family and sexual violence. (Please note: The term Aboriginal is used herein to refer to both Aboriginal and Torres Strait Islander people wherever relevant.)
Funded by the Department of the Prime Minister and Cabinet (DPMC) under the national Family Violence Prevention Legal Service (FVPLS) Program, we are the largest FVPLS provider in Australia. The FVPLS program provides specialist legal services in the area of family violence matters. It aims to ‘prevent, reduce and respond to incidents of family violence and sexual assault among Aboriginal people’.[1] Fourteen services are funded nationally to provide these services to 31 rural and remote locations.
Services are delivered in six regions across WA covering the West Kimberley, East Kimberley, Gascoyne, Midwest, Goldfields, and Pilbara regions. 47% of the state’s Aboriginal population resides in these regions.[2]
Offices are located in Broome, Carnarvon, Geraldton, Kalgoorlie, Kununurra, and Port Hedland. From these locations outreach services extend to over 30 remote townships and Aboriginal communities. The corporate services office located in Perth provides strategic and management support to all regional offices including finance, human resources, administration, quality assurance and compliance functions.
2. Introduction
The Aboriginal Family Law Services (WA) welcomes the opportunity to have input into the Family Law Council reference on Families with Complex Needs & the Intersection of the Family Law and Child Protection Systems. This submission has been prepared in collaboration with the following student from the University of Notre Dame - Amy Bradley.
We also endorse the submission provided by the National Family Violence Prevention Legal Service Forum.
Aboriginal Family Law Services (WA) provides professional legal assistance to Aboriginal peoples that have experienced or are experiencing domestic or sexual violence. This submission on Families with Complex Needs & the Intersection of the Family Law and Child Protection Systems will address questions 1 to 6 on the first two questions in the terms of reference.
The Aboriginal Family Law Services (WA) would be pleased to provide further information additional to this submission if required.
3. Background Information
The child protection system is in crisis nationally, with symptoms being experienced across Australia including burgeoning numbers of children – particularly Aboriginal children – entering out of home care. Domestic and family violence is the key driver behind the overrepresentation of Aboriginal children in child protection. While there is limited data from WA to support this claim, the recent evidence from the Victorian Taskforce 1000 project – a review of the cases of the thousand or more Aboriginal children in care – has found that “well over ninety per cent of Aboriginal children entering care” have done so due to family violence.[3]
The Department for Child Protection and Family Support (DCPFS) are unable to state how many children are in the CEO’s care due to family and domestic violence as they do not currently specifically capture and report on this data, however they estimate this to be between 70-90 percent. In their 2013-14 Annual Report they state that “Violence in the home, predominantly against women and children, is a major underlying factor in many child protection cases. Other common issues that lead to children being at risk of harm include parental drug and alcohol misuse, mental health issues and financial problems”.[4]
Statistically Aboriginal women fare much worse compared to non-Aboriginal women in relation to the prevalence and impact of family and domestic violence:
• Aboriginal women experience domestic violence more often and more severely than their non-Aboriginal counterparts do.
• There is a higher use of restraining orders compared to the non-Aboriginal population, with a higher level of violence in these situations.
• Aboriginal women are statistically more prone to hospitalization and death as a result of family and domestic violence (35[5] times and 10[6] times respectively).
In Western Australia, family and domestic violence incidents reported to the police have increased over the 5-year period from 2008 on average by almost 43%. All regions had an increase of greater than 30%. The region with the largest increase is the Kimberley, showing a 5-year increase of 79% in Domestic Violence Incident Reports (DVIR) that have been completed by police. These figures do not specify ethnicity, an issue raised separately in this submission. However, it is relevant to note that while Aboriginal people make up 3.1% of the Western Australian population, the Kimberley population is closer to 50%.[7] It is reasonable to question how many of the reports made in the Kimberley relate to Aboriginal victims of family and domestic violence.
In that same 5-year span, hospitalizations related to family and domestic violence have increased for men and women by an average of almost 46%. Homicides have doubled. The number of perpetrators charged with assault and sexual assault has decreased by 19% and 29% respectively. The number of perpetrators charged with breaches of a restraining order, including police orders has increased by 45%.
Further ramifications of family and domestic violence on Aboriginal women and communities are visible through other indicators:
· Aboriginal people are overrepresented in the child protection system with Aboriginal children making up 51.5% of children in out of home care in WA.[8]
· The percentage of Aboriginal compared to non-Aboriginal children in care by region (including metro) in WA varies from 20% (Peel) to 100% (East Kimberley).[9]
· Aboriginal people are overrepresented in the prison system, comprising 40 percent of the total prison population, with the adult female prisoner population over 50 percent.[10]
· Children who experience family violence or have been in care are more likely to use legal aid as adults.[11]
Whatever we say about the prevalence and impact of domestic violence in Australia, it is important to note that an estimated 90% goes unreported.[12] A 2005 report stated that in the last 12 months only 5% of women who had experienced violence from a current partner had reported the last incident to police.[13] Further, underestimations may be due to reporting barriers unique to Aboriginal victims-survivors and failures to identify or record Aboriginality of the victim’s.
The financial burden of family and domestic violence to the Australian community is well documented and estimated at $13.6 billion in 2008-09.[14] This is expected to rise and includes direct and indirect costs such as, the “direct costs to employers from absenteeism, staff turnover and lost productivity; the indirect costs are defined as employer tax share of public sector costs in the provision of services to victims and perpetrators of domestic violence; direct and opportunity costs to victims, perpetrators, family and friends; and the shared impact of domestic violence on the wider community, including inter-generational costs.” [15]
For Aboriginal communities the prevalence and impact of family and domestic violence is understood in terms of loss of connection to family, culture and self. The development of a sense of belonging and self may be severely compromised when raised out of one’s own family. The circumstances of the removal, the quantity and quality of ongoing contact with parents and the ability to adapt to the new living situation will impact on the child’s development. The child’s ability to meet developmental milestones will be challenged and almost certainly impaired by the trauma of the removal and any consequent placement shift – as well as from the predisposing circumstances of abuse and trauma. Traumas associated with removal from family can include individual, cultural, community, family and economic.[16]
Childhood trauma and the resultant impact on development lead to poorer outcomes in adulthood across all spheres – relationships, education, health (physical, cultural, spiritual), employment, and economic independence.
“The absence of ongoing support can lead not only to poor outcomes in existing cases, but can contribute to an inter-generational perpetuation of the dynamics that lead to child removal.”[17]
Creating the conditions whereby trauma can be healed for those who have already experienced family and domestic violence is crucial to preventing violence for the next generations. A focus of resources and sustained effort now is fundamental to breaking the cycle of violence, which leads to negative life outcomes experienced by so many Aboriginal men, women and children.
4. Response to questions from Terms of Reference
4.1 What are the experiences of children & families who are involved in both child protection and family law proceedings? How might these experiences be improved?
Aboriginal Australians have traditionally underutilized family law systems[18], including family dispute resolution (FDR) services. Reasons for this include the historical and contemporary contact with the child welfare system and associated legal processes, deterring people generally from utilizing the family court for fear of having their child removed.[19] FDR services introduced into the landscape in 2006 have failed to attract Aboriginal clients mostly due to their delivery by mainstream services and lack of Aboriginal accredited FDR practitioners. In 2009 there were 12 Aboriginal practitioners nationally.[20]
For the Aboriginal Family Law Services (WA) this trend is supported by its client figures. Only 16% of its total clients in 2013-14 presented with family law matters. By comparison 26% presented with child protection matters, including care and protection orders. Other matters included Criminal Injuries Compensation (CIC) (48%) and Violence Restraining Orders (VRO) (10%).
Almost all family law clients are engaged in in child related matters including parenting plans, contact orders, residency and child support. Given the nature of our service, most cases have an element of family and domestic violence or sexual assault reported. Given the disadvantaged socio-economic status of our client group there are very few people presenting for advice on property whether related to marriage or de facto relationships.
A questionnaire regarding families’ experiences when having matters dealt with in the Family Court of Western Australia (‘FCWA’) and the Children’s Court of Western Australia (‘CCWA’) was conducted within our regional catchment centres.
These responses demonstrated the difficulties clients have improving their circumstances due to limited service providers in those regions. The inference drawn here was that there are more services provided in the city centres, and while some services existed within the regions, their availability and community exposure was limited.
In some cases our clients tended to relapse back into the situations that brought them into the system in the first place, such as drug and alcohol dependency and family violence. That is, the stress caused by family and relationship breakdown, and then entering the legal and court system, lead them to repeat self-destructive and self-sabotaging behaviours.
As mentioned in the introductory section, Aboriginal people - particularly women - are at higher risk than non-Aboriginal people of family and domestic violence. This is higher again in regional and remote areas where geographical isolation and dearth of services exacerbates the problem. Further, fewer employment opportunities and education retention issues represent sustained negative impacts on a community’s wellbeing.
Aboriginal people are disproportionately overrepresented in the child protection jurisdiction and are reluctant to access assistance in the FCWA. Court can be an intimidating experience for Aboriginal people and this aspect of trust for the judicial system forms a barrier to utilise these services.
What works in the city does not necessarily work within the Kimberley’s when these matters are brought to court. Distance and transport have long been difficulties for people living in regional and remote areas. Access to legal and court services are hindered by distance and access to transport.
Other issues raised include people’s comprehension of the procedural process, how the courts work and when and where these clients have to appear for their next court dates. There is a general reluctance to access the judicial system due to the mistrust Aboriginal people have for the justice system.
Access to legal assistance is a major issue for Aboriginal people, particularly in regional locations where services are limited. Inhibitors to access to legal assistance services include lack of awareness of issues as legal problems, social, economic implications and prejudices held against the legal system; previous unpleasant experiences, lack of awareness, lack of confidence in the legal system, failure of recognition in the Australian legal system of Aboriginal cultures and traditions, lack of available childcare, the location of such services, physical disability, education, lack of internet access, income, and language (Legal Aid 2006, p. 3).[21] With specific regard to prejudices against the legal system, the historic context of colonisation cannot be overlooked in this discussion and its recurring impacts on Aboriginal people and communities.